9911796707
TMI Blog2025 (2) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ed promotion on the post of Assistant Commissioner, whereas the petitioners of Writ-A No. 3769 of 2023 working on the post of Assistant Commissioner have claimed promotion on the post of Deputy Commissioner. Therefore, they are being taken up together and decided by a common order. (3) The grievance raised in the aforesaid two writ petitions is that on enforcement of The U.P. Goods & Services Tax Act, 2017, the service benefits which had accrued to the petitioners in the Entertainment and Betting Tax Department are liable to be granted in G.S.T. department on merger and they be promoted on the next higher post as and when the promotion falls due in the G.S.T. department. (4) The facts briefly stated are as follows:- (5) All the petitioners were previously governed under U.P. Entertainment and Betting Tax Act, 1979 [briefly, it is stated as 'Entertainment Tax Act'] and they joined their services in the said Department during the period 1996-1997 and until 2017, they were promoted to the next higher level posts. (6) On 01.07.2017, The U.P. Goods & Services Tax Act, 2017 [briefly, referred to as 'GST Act'] was promulgated and came into force with immediate effect. By virtue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Department. Such identification on the basis of birthmark of employees is completely unjust and impermissible as held by the Apex Court in the cases of B. Manmad Reddy and others v. Chandra Prakash Reddy and others [(2010) 3 SCC 314] and S. Sivaguru v. State of Tamil Nadu and others & other connected appeals [(2013) 7 SCC 335]. (12) It is further submitted that Rule 3(3) of the impugned Rules, 2022 provides a new definition of the 'Substantive Appointment Date' for the employees of the erstwhile Entertainment Tax Department and it states that 'Substantive Appointment Date' means the date of appointment on the post held on notification dated 24.04.2018. (13) The aforesaid definition runs contrary to the definition of the substantive appointment as per the U.P. Government Servant Seniority Rules, 1991. Clause 4(h) of the U.P. Government Servant Seniority Rules, 1991 defines 'substantive appointment' as an appointment, not being an ad hoc appointment, on a post in the cadre of Service made after selection in accordance with the Service Rules relating to that service. It is submitted that while formulating the impugned Rules, 2022 the petitioners who have put in more than 20-25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submission of the learned counsel for the petitioners is that if the Merger Rules, 2022 are allowed to prevail then almost all of the petitioners will attain the age of superannuation even before they will be able to attain the qualifying service to become eligible for even consideration for promotion, whereas as per their erstwhile Service Rules, 1992, which for all practical purposes remain in existence, all of them are eligible to be considered for promotion. (17) All the Assistant Commissioners in the erstwhile Entertainment Tax Department became qualified to be considered for promotion as per their own Rules, 1992 between 01.07.2021 to 01.07.2023, whereas if the impugned Rules, 2022 prevail then all of the petitioners and other Assistant Commissioners in the erstwhile Entertainment Tax Department will attain the age of superannuation before they can even complete their qualifying service of 7 years which is prescribed in the relevant Service Rules of Commercial Tax Department. The condition of all the Entertainment Tax Officers in Writ-A No. 3770 of 2023 in the erstwhile Entertainment Ax Department is almost the same. (18) It is further submitted that the State Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, the petitioners in paragraph - 11 of their rejoinder affidavit have asserted that it is evident from the minutes of the meeting dated 05.05.2017 that the merger of employees of the Entertainment Tax Department was made along with the posts that they were holding and no separate posts were created in the Commercial Tax Department. The respondents have thereafter filed another short counter affidavit in response to the rejoinder affidavit of the petitioners. However, the respondents have not refuted the contents of paragraph 11 of the rejoinder affidavit of the petitioners. It is a settled proposition of law that in the absence of a specific denial to a pleading, it is considered as admitted. (23) Learned counsel for the petitioners has submitted that such classification is completely baseless and it achieves no purpose except for prejudicing the interest of employees of the erstwhile Entertainment Tax Department with respect to their promotion. Further, the impugned Rules, 2022 are unconstitutional as they provide for principles for determination of seniority of employees of the Entertainment Tax Department in contra distinction to the general principles as applicable to all gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merged in the Commercial Tax Department as dead cadre by Notification dated 09 March, 2019. (28) The learned Standing Counsel has next submitted that since the employees of the Entertainment and Betting Tax Department were born in the equivalent cadre of the Commercial Tax Department for the first time by merger notification dated 24.04.2018 and the law on this aspect has crystallized that seniority can only be given from the date when an employee is born into the cadre. This position has been crystallized by Hon'ble the Apex Court in the cases of Bihar State Electricity Board and others v. Dharamdeo Das [2024 (2) SLJ 498] and State of Uttar Pradesh and others v. Ashok Kumar Srivastava and another [(2014) 14 SCC 720]. Thus the submission of the learned counsel for the respondents is that looking at the administrative exigency and the aim of protecting the services of the petitioners, the date of merger notification was taken as 'Substantive Appointment Date'. (29) Further submission of learned Standing Counsel is that Rule 4(4) clearly states that after commencement of the Merger Rules, 2022, promotion and other service matters of related post shall be decided under the concerni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax in the year 1997 were governed under U.P. Entertainment and Betting Tax Act, 1979 and with the passage of time, they were promoted to the post of District Entertainment Tax Officer in the year 2016. Details of the petitioners are given hereunder:- Sl. No. Name of the petitioner Date of joining in the department Date of promotion of Entertainment Tax Officer Date of retirement 1. Jai Prakash Chand 24.07.1997 25.10.2016 31.01.2025 2. Piyush Kumar Yadav 01.08.1997 25.10.2016 30.1.2029 3. Kalpana Kannaujia 04.07.1997 02.11.2016 30.04.2027 (34) The details of petitioners of Writ-A No. 3769 of 2023 are given hereunder:- Sl. No. Name of the petitioner Date of joining in the department Date of promotion as Entertainment Tax Officer Date of promotion as Assistant Commissioner Date of retirement 1. Roshan Lal 22.11.1996 09.04.2015 01.07.2020 31.03.2025 2. Prabhat Chaudhary 13.06.1997 04.01.2016 01.07.2020 30.04.2028 3. Sursh Chandra Singh Bisen 31.07.1997 04.01.2016 01.01.2021 31.01.2027 (35) Since the matter revolves around the provisions of Section 174 in The U.P. Goods and Services Tax Act, 2017, it is necessary to reproduce it as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre of Commercial Tax Department to maintain the continuity of service. Further, the continuity of service has been maintained throughout and the petitioners' appointments have not been treated as fresh appointments. (38) At this stage, it is necessary to look into the order dated 19.05.2023 passed by this Court which reads as under:- "Connect and list with Writ-A No.3769 of 2023 in the week commencing 24th July, 2023. Notice on behalf of respondents has been accepted by the office of learned Chief Standing Counsel. Considering the imminent problem being faced by the petitioners who prior to their merger in the Commercial Tax Department were working in the Entertainment Tax Department, in relation to their promotional avenues, we direct that the respondents shall file their counter affidavit within a period of six weeks. We expect that within the time being stipulated herein, respondents shall file counter affidavit considering the urgency in the matter." (39) Pursuant to the order dated 19.05.2023, the State Government has filed its counter affidavit wherein the respondents have asserted that only the employees of the Entertainment Tax Department have been merged into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Entertainment and Betting Tax (Gazetted) Service Rules, 1992. On account of Merger Rules, 2022, when they have been placed at the bottom of the seniority list in the respective cadres of the Commercial Tax Department as on 24.04.2018, they raised their grievance by means of the aforesaid writ petitions stating that the action taken by the State Government is hit by Article 14 of the Constitution of India. (44) For the sake of argument, if the petitioners had been retrenched from the erstwhile department in view of repeal of the Act, on coming into force of U.P. G.S.T. Act, 2017, their fate would be in dilemma. Instead, the State Government took a conscious decision to merge all the employees of the Entertainment & Betting Tax Department into the Commercial Tax Department. (45) Although the reasons for placement of the employees of the Entertainment and Betting Tax Department junior to the Commercial Tax employees in the service year has been mentioned above, but the placement of the petitioners in the Merger Rules, 2022 is a part of policy decision and the petitioners have no locus to question the policy decision taken by the State Government. (46) The only grievance raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal as there is a need to maintain separation of powers. (50) In Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors., (1981) 1 SCC 568, the Apex Court has observed as under:- "35. A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements - a problem with which Parliament has been wrestling for too long - emerges. I have dwelt at a little length on this policy aspect and the court process because the learned Attorney-General challenged the petitioner's locus standi either qua worker or qua citizen to question in court the wrongdoings of the public sector although he maintained that what had been done by the Corporation was both bona fide and correct. We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a government c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Government should not be interfered with in a routine manner unless the policy is contrary to the provisions of statutory rules or of the Constitution. Nothing has been brought to our notice that the Policy is contrary to the provisions of the statutory rules or the Constitution. For this simple reason, we set aside the order of the High Court impugned herein." (53) Recently, in Jacob Puliyel v. Union of India and Ors., 2022 SCC OnLine SC 533, though the Supreme Court was broadly examining policy decisions pertaining to health, it had observed that in exercise of their judicial review, Courts should not ordinarily interfere with the policy decisions of the Executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness, etc. The relevant portion of the judgment stating the same is as under:- "21. We shall now proceed to analyse the precedents of this Court on the ambit of judicial review of public policies relating to health. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
